Constitutional Wisdom and Common Sense on Ceremonial Prayer — An Important Victory

Tuesday • May 6, 2014

In a landmark decision, the United States Supreme Court ruled yesterday that prayer before the opening of a legislative body does not violate the U. S. Constitution. The decision is a victory for both the Constitution and for common sense, and the controversy about it points to the deep cultural divide over one of the founding principles of the nation — religious liberty.

That divide was evident in the Court itself, with the justices breaking along liberal and conservative lines. The 5 to 4 decision is an indication that this case, Town of Greece, New York v. Galloway, stands at the epicenter of cultural conflict.

The case emerged after two women filed suit against the town of Greece in New York, claiming that the town’s practice of opening town council meetings with prayer violated their liberties and the Constitution. The facts presented in the case indicated that the vast majority of citizens who prayed were Christians, and that their prayers were Christian in content. The women charged that this practice violated the Establishment Clause of the Constitution. They did not demand that the practice of prayers before council meetings cease, but that the only prayers offered would be “inclusive and ecumenical prayers” and that all references would be to a “generic God.”

The Court ruled that the practice did not, in fact, violate the Constitution. Furthermore, the Court’s decision included a clear refutation of the very concept of a “nonsectarian prayer” to a “generic God.” As the Court’s syllabus stated:

“To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. Respondents’ contrary arguments are unpersuasive. It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer. It would also be unwise to conclude that only those religious words acceptable to the majority are permissible, for the First Amendment is not a majority rule and government may not seek to define permissible categories of religious speech. In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content.”

In the opinion for the majority, Justice Anthony Kennedy offered reasoning that should inform the Court at all points, especially on contested questions of religious liberty. Justice Kennedy stated clearly and boldly that today’s interpretation of the Constitution must be guided by the actual practices of the framers. In other words, the Constitution must not be read to forbid what the framers of the document unquestionably allowed.

On this issue, the historical record is clear. When attorneys for the two women who originated this case brought evidence of the fact that Christian pastors had prayed with explicit Christian language, Justice Kennedy countered that the framers of the Constitution allowed for the same, and that the United States Congress allows such prayers at the opening of daily sessions in the House of Representatives and the Senate.

But Justice Kennedy pressed further, countering two very dangerous arguments. The first is the assertion that the only prayers which may be allowed would be nonsectarian. He stated that any “insistence on nonsectarian prayer as a single, fixed standard” is not consistent with the Court’s previous rulings. Going back to the founding era, he stated that the Christian nature of the prayers offered to legislative bodies “must not be dismissed as the relic of a time when our nation was less pluralistic than today.”

The second very important argument made by Justice Kennedy is even more perceptive and, in the long run, more important. He asserted that the government has no competence under the Constitution to evaluate prayers in terms of content. Specifically, he said that the Establishment Clause actually would prevent the government from determining the content of any prayer — especially in terms of some supposed standard of nonsectarianism.

Put bluntly, government has no right to declare that the only God welcome in public is a “generic God.” That is a profoundly important constitutional argument. For Christians, this is also a profoundly important theological argument. We do not believe that any “generic God” exists, nor can we allow that some reference to a “generic God” is a reference to the God of the Bible.

In her leading dissent, Justice Elena Kagan wrote, “When citizens of this country approach their government, they do so only as Americans, not as members of one faith or another.” That is a striking example of an argument that can only be explained by a thoroughly secular worldview. In truth, we can never show up in any context as simple citizens, informed and shaped by a generic worldview. We always show up as all we are, and that includes our most fundamental beliefs.

The Court’s ruling yesterday is important at every level — even as the controversy over the ruling is very illuminating. Some people argue that the problem is prayer in any form, and would simply prohibit public prayers at any governmental occasion. Others, like the women who brought this case against Greece, New York, would argue that prayers may be allowed, but only if they are sufficiently nonsectarian prayers offered to a generic deity. Others, including Justice Kennedy and a majority of the Court, argue that the nation has clearly allowed explicitly “sectarian” prayers to be offered at government occasions, and that the nation’s commitment to pluralism then depends on the invitation to pray being extended to all, regardless of creed.

That directs us to another very important section of Justice Kennedy’s opinion: “Congress continues to permit its appointed and visiting chaplains to express themselves in a religious idiom. It acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds.”

This is a message that Christians in America must affirm without reservation. Religious liberty for Christians means religious liberty — full religious liberty — for all citizens. We must not only concede this point, we must make this point. We cannot be constitutionally offended when Buddhists pray at the opening of Congress as Buddhists, when Muslims open sessions of the town council meeting with Muslim prayers, or even when the rabbi prays in accordance with his Jewish faith.

Finally, we must recognize that one of the primary purposes of prayer before a government assembly is to remind all present that government, though important, is not ultimate. Justice Kennedy affirmed this understanding in these words:

“Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs. The prayer in this case has a permissible ceremonial purpose. It is not an unconstitutional establishment of religion.”

Now, perhaps the real question for Christians is this — is prayer before government assemblies our only concern? It makes little sense to insist on a right to pray for our government in public, if we do not do so in private. As the Apostle Paul directed:

“First of all, then, I urge that supplications, prayers, intercessions, and thanksgivings be made for all people, for kings and all who are in high positions, that we may lead a peaceful and quiet life, godly and dignified in every way. This is good, and it is pleasing in the sight of God our Savior, who desires all people to be saved and to come to the knowledge of the truth” [1 Timothy 2:1-4].

And all God’s people said, AMEN.

I am always glad to hear from readers. Just write me at mail@albertmohler.com. You can follow me on Twitter at www.twitter.com/albertmohler

Supreme Court of the United States decision in the case of Town of Greece, NY v. Galloway, Monday, May 5, 2014. http://www2.bloomberglaw.com/public/desktop/document/Town_of_Greece_v_Galloway_No_12696_2014_BL_124245_US_May_05_2014_